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Editorial: Open up Juvenile Dependency Courts

The Los Angeles Times, in a lead Sunday editorial, has called for the opening of juvenile court dependency hearings, where decisions are made as to who is appropriate to provide parental care for a neglected or abused child. A champion for fathers' custodial rights promptly seconded the motion.

Wrote the Times:

The problems of Los Angeles County's Department of Children and Family Services are too numerous to list and too serious to ignore. County supervisors addressed one last week by moving aside the head of the troubled agency. Those that remain range from uneven and onerous caseloads to technological limitations to inexperienced workers handling delicate matters beyond their capacity. Compounding all of those issues, however, is one problem that can and should be fixed: Dependency courts, where cases of child abuse and neglect are heard, should be open to the public.

Some may regard it as unsurprising that a newspaper would favor open judicial proceedings, and in one sense it is: We do generally believe that the public's interests are most reliably served when records and actions of government agencies, including courts, are subject to scrutiny by the media and the public. But this proposal for openness is not special pleading by the media. Already, juvenile and dependency hearings may be open if the presiding officer concludes there are compelling public interests in lifting the presumption of secrecy. Because news organizations are the rare institution with both resources and interest in openness, many of those cases that journalists seek to observe are opened.

That leaves others out, however, including child welfare advocates, interested parties and those who simply want to see justice done, but lack the knowledge or money to hire lawyers and fight their way into court.

It is natural to want to protect the privacy of children, and no system should be cavalier about their interests. But reversing the presumption of secrecy in these proceedings would not endanger children or expose them to harmful publicity. Just as judges today have the power to open proceedings when the public interest demands it, they would have the authority under the new system to shut hearings when the child's interests compelled it.

Meanwhile, openness would subject others in the system to scrutiny. The actions  or inaction  of social workers would be matters of public debate; decisions about whether to pull children out of their homes or to leave them with their families would be reviewable. Serious philosophical and practical differences about the county's foster care system would be opened for public consideration: Does DCFS remove too many children from their homes when there are allegations of abuse? Does it leave too many in the hands of abusive parents or reunite them too quickly? Those are hard questions to answer even with full information; under the current rules,they are even harder to debate because the basic facts are hidden.

Just this past year, a young boy who talked of suicide and complained of abuse at the hands of his mother and her boyfriend was left in their home after a visit by a social worker. The boy hanged himself that night. Was the social worker negligent? Some county officials think so; others have defended the employee. But in a system shielded from public view and notorious for protecting workers from discipline even when they badly err, it is all but impossible for outsiders to say with certainty.

Openness also would strike one measure of irrationality from the courts. Today, a parent who is charged with criminal neglect is tried in an open courtroom in Superior Court, while the related dependency case is heard in a closed chamber. There is no logic to this. An open criminal proceeding helps protect the rights of the accused and allows the public to assess the work of its representatives. That's no less true in dependency than it is in criminal court. It is silly to think that legitimate privacy interests are being protected by a closed proceeding when the same facts are being disclosed in an open courtroom down the street.

Agencies that once resisted this sensible reform are gradually coming around. DCFS itself is now recommending open hearings, which it says "will provide greater transparency and result in a better understanding of child protective services, encourage necessary reforms and strengthen community partnerships essential to improving the safety of children from abuse and neglect." The Board of Supervisors has endorsed that language and is preparing to lobby for a bill in Sacramento that would open hearings. Similar bills by former state Sen. Adam Schiff and Senate President Pro Tem Darrell Steinberg failed, butDCFS' support means that much of the earlier opposition has melted away. The coming year offers a realistic chance of success.

Indeed, opening hearings ought to be regarded as a necessary first step, not the ultimate goal. Once dependency courts have been opened by state law, the next step should be to open records as well. As with hearings, they could be withheld at the discretion of a judge, but records of the public work of public employees should be released unless there is a compelling reason for privacy.

Among the most fervent advocates of transparency is Michael Nash, the presiding judge of Los Angeles County Juvenile Court. He backed the efforts of Schiff and Steinberg and has urged the Legislature to finally adopt legislation to open dependency proceedings. He's done that even though one group that would be more closely watched if hearings were open is judges.

Judges and others involved in child welfare, Nash said last week, "need to be accountable to the public we serve." The current emphasis on closed hearings, he added, has worked to undermine the primary responsibility of dependency courts: the protection of children. "The main entity that's protected by closing these proceedings is the system itself," he argued. And that system, as Nash noted, "is far from perfect."

More than 20 states presently conduct proceedings in their dependency courts openly, along the lines that Nash proposes for California. Oregon has a respected system, as does Minnesota. Their successes have helped convince those who once feared openness that it in fact has protected children, not exposed or harmed them. California has missed previous chances to lead in this area. Now, it should catch up with those that have paved the way. Then, at last, the children of this county and others will know that their fates will not be sealed in secret, but that those whose responsibility it is to care for them will be held accountable for doing it well.

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One thought on “Editorial: Open up Juvenile Dependency Courts”

I was invited by the Assembly Judiciary Committee to testify regarding the open dependency court bill, AB 73. I have spent almost 15 years studying the dangers to abused children from publicity. I have written 5 law review articles, testified in different court legislatures, and testified in juvenile court as an expert witness. CalAware’s article regarding open courts is simply misinformed and wrong.
If open courts are not dangerous for children, then why does the largest organization of attorneys who represent abused children, the National Association of Counsel for Children, oppose presumptively open courts like those envisioned by AB 73? Why does the largest organization of children’s doctors in the United States, the American Academy of Pediatrics, oppose presumptively open dependency courts? It certainly is not because they have something to hide, but rather because they want to protect abused children from publicity that psychiatric studies has demonstrated causes them additional mental harm and often leads to bullying by peers.
CalAware suggests that newspapers are not biased on the open court issue. Then why have the major California newspapers only published proponents’ op-ed articles supporting AB 73, and why have they, like the Los Angeles Times, several times refused to publish the opposition’s arguments to AB 73? Since the L.A. Times would not permit me to publish a response, luckily a more ethical paper, the Los Angeles Daily Journal, permitted me to respond. But the media has generally only provided one side to the the issue–its side.
Why didn’t CawAware inform its readers of the recently failed open dependency court system in Connecticut. They had a year-long Pilot Project and the Advisory Committee, after studying its system and the open court systems in other states, found that there was no evidence-based information that opening the courts brings system or professional accountability and it places abused children at risk of further trauma.
As a psychiatrist testified in the California legislature regarding open courts:
“The notion that publicizing this process [child dependency] will somehow benefit the child is hard to fathom. Publicity in the area of child maltreatment makes the child vulnerable to wide ranging humiliation, it leads to repetition of original trauma allowing the legal process…to become part of an extended pattern of psychological abuse.”
The CalAware argument that there is “no logic” to having open criminal cases, but confidential child dependency cases is so misinformed that it is difficult to adequately respond. First, there is no policy choice whether or not to have open criminal proceedings — they are guaranteed by the United States Constitution. There is not federal constitutional right to access to juvenile court, and therefore, that decision is a cost/benefit policy analysis. CalAware apparently did not think it important to check the statistics before it said that it was illogical to have some courts open and some closed. Let us look at the data. One study demonstrates that in an entire year there were only approximately 459 criminal child abuse trials, but there were over 70,000 hearings in the dependency courts. Is CalAware saying that because 459 of California’s abused children may have to suffer from the publicity of a criminal trial that the other 50,000-70,000 children in the dependency courts should also suffer? That is a very compassionate position isn’t it?
I am not apologist for the child dependency system. In fact, I have spent 30 years of my career as an attorney writing about its inadequacies, arguing in trial courts and in the California Supreme Court about is problems, and in working on legislation to bring the reality of the best interest of California’s abused children closer to a reality than it currently is as a platitude.
We should not use our abused children as political pawns. Everyone, including the Assembly Judiciary Committee knows what is needed. In fact, the California Judicial Council and its Administrative Office of Courts have clearly told us the major problem: judges’, attorneys’, and social workers’ caseloads are too high to be able to provide competent professional services. The solution is not disclosing abused children’s often embarrassing secrets; the answer is properly funding the system so that all professionals can do their jobs well.
AB 73 is not a humane solution and should be defeated.